EPA's Cap-and-Trade Plan for Mercury Fails to Protect Public Health

Conservation groups filed litigation today challenging the Environmental Protection Agency’s weak rule establishing a cap-and-trade system for mercury reductions. A cap-and-trade system not only increases mercury levels in some areas by creating mercury "hotspots," it also falls far short of mercury reductions originally mandated under the Clean Air Act, which EPA has decided to ignore.

National Wildlife Federation (NWF), Environmental Defense and Sierra Club, represented by Earthjustice, filed their challenge in the U.S. Court of Appeals for the District of Columbia Circuit (Docket #05-1267). The Chesapeake Bay Foundation and Waterkeeper Alliance are also joining the suit. The cap-and-trade rule creates a mercury trading market where plants can trade credits, avoiding overall reductions and increasing mercury levels in some areas.

For instance, Texas power plants currently release some 10,000 pounds of mercury each year. Under the EPA's proposed cap-and-trade system, Texas will be required to reduce its mercury output from 2010-2017 to 9,314 pounds annually. This meager 7 percent reduction will do little to attack the threat of mercury contamination in the state's waterways and lakes. Three of Texas' coal-burning power plants are among the top 15 highest mercury emitters in the country. Under EPA's rule, two of these plants -- Martin Lake and Limestone -- could actually increase their overall mercury emissions through 2017.

"Texas is the perfect example manifesting how flawed EPA's approach at mercury reduction really is," said Dr. Ramon Alvarez, a scientist with the Texas office of Environmental Defense. "Our state has the highest mercury pollution levels in the country, but EPA is allowing some of the dirtiest plants to increase their pollution. This is not environmental protection. It is a windfall for polluters and a threat to those most susceptible to mercury poisoning."

But the mercury problem is not exclusive to Texas. The entire Chesapeake Bay Region is a huge mercury hotspot. Maryland, Virginia and Pennsylvania -- states bordering this natural treasure in which the fisheries industry plays a huge economic role -- all have fish consumption advisories for mercury. According to a 2004 study conducted by the National Oceanic and Atmospheric Administration, sources within 60 miles of the Bay contribute more mercury to the Bay than distant sources. Power plants like Constellation's Brandon Shores Plant in Maryland, Reliant Energy’s Keystone Power Plant in Pennsylvania and the Chesapeake Energy Center in Virginia will be allowed to continue emitting mercury and contaminating fish populations throughout the Bay.

45 states have advisories against fish consumption due to mercury contamination. Waterbodies such as the Chesapeake Bay experience unhealthy levels of mercury, limiting fishing and other recreational activities. Mercury is a dangerous neurotoxin found to stall the development of children's brains, both in and out of the womb. Every year an estimated 630,000 babies are born in America with unsafe levels of mercury in their blood.

"I plan to have children in the next two years and I eat fish from the Chesapeake Bay region," said Ally Gontang, an employee and member of the Chesapeake Bay Foundation. "However, I have had my hair tested for mercury and my level is above EPA's alert for women of childbearing years. My fiancé and I are both saddened by and mad at EPA's actions."

Power plants are, collectively, the worst toxic emitters in the country. They spew 40% of all mercury emissions, or roughly 48 tons of mercury each year. Over 1100 coal-fired electric generating units at 450 power plants nationwide are affected by this rule. While this rule is a weak attempt at mercury reductions, it provides no emission limits for other power plant pollutants like arsenic, lead and chromium. Power plants collectively emit more than 70 tons of arsenic and 80 tons each of lead and chromium annually.

For those who rely on subsistence fishing, EPA's rule is a travesty, avoiding mercury reductions on rivers and lakes that sustain food supplies for many people. "EPA's rule is an assault on our tribal people and culture," stated Eric Nicolar, the Air Quality Manager for the Penobscot Indian Nation within Maine. "Our 1,100 members are being forced to subsist on mercury-laden fish taken from the Penobscot River everyday. Under EPA's illegal cap and trade scheme, the Ohio Valley coal-fired power plants will be free to poison our sacred waterways with mercury for many more years to come."

Although the cap-and-trade rule may provide some limits on mercury emissions, the rule will not take full effect until 2018, providing a much lower emissions standard than what is required under the Clean Air Act. Litigation challenging the cap-and-trade rule will not slow any mercury reductions, but rather could defeat a weak rule that already allows for much longer mercury attainment goals than those already required by the Clean Air Act. EPA incorrectly assumes that mercury reductions could result from other pollution controls required by separate regulations. These reductions will not come near what could have been as the result of a strong mercury reduction rule.

This lawsuit, as well as litigation filed May 18 challenging another portion of EPA's power plant rule, challenges EPA to develop emission standards that offer protections we all deserve. Eight other conservation groups and 13 states have also filed litigation challenging EPA's weak rule.

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